University of Michigan's student government wants to review the school's sexual assault investigation involving ex-football player Brendan Gibbons — but U-M has refused to disclose investigation documents.

They confuse "has refused to disclose" with "is legally prevented from disclosing." We've been through this, but FERPA (20 USC 1232g) is a federal law that prevents the disclosure of any "education records" to anyone that does not fall into one of the exception categories without the permission of the student.

Education records are defined as "those records, files, documents, and other materials which(i)contain information directly related to a student; and (ii)are maintained by an educational agency or institution or by a person acting for such agency or institution." Investigation documents pertain to a student (Brendan Gibbons), and were created and maintained by the University. They are educational records.

The CSG (the student government) does not fall under any of the exceptions that would allow UofM to release records to them. The closest exception is 1232g(b)(1)(A), which allows the release to othe "school officials" with a "legitimate educational interest" [ED: see the update below]. But the CSG is not a school official (nor are its officers), and they have no legitimate educational interest.

So, as a matter of federal law, Michigan cannot release investigation documents to the CSG. Full stop.

The Central Student Government and U-M administrators disagree about whether student government should be given access to investigation documents.

"It's a little disappointing on our end," said CSG president Michael Proppe, a senior statistics major. "A review would have provided transparency about this process."

The whole point of FERPA is to prevent 'transparency" with student records. But we'll get back to that later.

CSG believes it has the right to review the investigation due to a provision in U-M's student discipline code allowing a CSG representative to review discipline cases.

"Periodic, regular review of records of resolution actions will be made available, in confidence, to the Code of Conduct Advisory Board Chair of CSG."

But U-M is refusing to provide access to the investigation documents.

Okay, a quick primer in Federal law: it trumps the U-M Statement of Student Rights and Responsibilities. It trumps it by a lot. Like the Right Bower trumps an off nine. So even IF this was the subject matter to which the Statement referred, it doesn't matter. Federal law wins.

The school has again cited student privacy and also maintained that under revisions made to the sexual misconduct policy in 2011, sexual misconduct reviews no longer fall under the Statement of Student Responsibilities.

Cool. And irrelevant. If the investigation records fall under FERPA (they do), then it couldn't matter less for the present case if they are included in the Statement of Student Responsibilities.

"We've maintained all along that case-specific files and anything that would be an investigation report are considered to be educational records protected by the Family Educational Rights and Privacy Act, so we cannot share those with the CSG taskforce," he continued. "The new policy on sexual misconduct, it's really not part of the Statement of Student Rights and Responsibilities, but it's a separate policy referenced in the Statement. Sexual misconduct doesn't apply to that [CSG] review."

What he said.

In September 1991, U-M's student government investigated an Ann Arbor Police Department tear gas incident; in January 1992 it looked at U-M's interim policy on discrimination and discriminatory harassment; and in 1997 it reviewed allegations of excessive force by U-M Department of Public Safety officers following a football game.

You know what all of those have in common? They aren't investigations of STUDENTS. You can review the records of officer so-and-so or review policies until you're blue in the face without running into FERPA. You can also review those records without any knowledge of the students involved. You can't, however, say, "HEY, GIVE US ALL OF THE GIBBONS RECORDS" and then pretend to redact the name of the only guy it could possibly be.

Proppe said student government has also reviewed past sexual misconduct investigations, although not recently.

I question this

[ED: Michael Proppe contacted me, and told me that they do have a file of previous investigations. The difference is that the records have the names redacted. Once the records are identifiable as being Student X's record, they are protected. Props to Michael for the clarification. Get it? Props? Proppe? /Shrugs, leaves room.]

"We certainly disagree with the university's interpretation," Proppe said. "The university main concern is 'Was this going to violate the privacy of individuals involved?'

Cool, but that really doesn't matter. Michigan can't tell the federal government "we know you said not to disclose this, but they promised they wouldn't tell anyone else." There is NO provision for these records to be disclosed to other entities if they pinkie-swear not to further disclose it.

Plus, you're selling this entire thing as "transparency." How can you say you're trying to make the investigation transparent while simultaneously declaring that you won't reveal anything?

CSG has commissioned a law firm to consider U-M's refusal to turn over investigation documents.

Hey, look, I just saved you a bunch of money.

Bottom line, there are a bunch of open questions for the University and the Athletic Department on this issue. But when people focus on the stuff that the University categorically cannot do, it distracts from the stuff onto which we actually SHOULD be trying to shine a light. And to say the University is somehow "obstructing" this student government investigation through the failure to turn over investigation records is, as they say, crap.

UPDATE: After a conversation with Clarence Beeks (who, frankly, seems like more of a Corporate/Securities Law expert (watch good movies, people)), I felt I should include the following info.

Because the statute does not define "school official", that definition is left to the University, and the University must give public notice of that definition. Michigan's definition is as follows:

A University official is any person employed by the University in an administrative, supervisory, academic, research, or support position; a person elected to the Board of Regents; a student or a University graduate serving on an official University committee or assisting another University official in performing his or her tasks; or a person employed by or under contract to, or serving as the agent of, the University to perform a specific task.

The CSG is not an "official University committee," a list of which can be found here. It is, by its own description, a student organization. Its members are chosen by the student body, not the University, and it performs no designated University function. Further, the definition of "legitimate educational interest" is as follows:

Legitimate educational interest is the need to review an education record in order for a University official to carry out his or her responsibilities in regard to performing an administrative task outlined in the official's duties, or performing a supervisory or instructional task directly related to the student's education.

(Emphasis mine). Even if we're somehow assuming students on CSG are officials, reviewing such cases is almost certainly not part of their outlined duties.

My big question: Why does the Federal government allow the University to expel a student for essentially committing a "crime" for which he was never tried and convicted?

Problems:

1) Lower burden of proof. The University only has to meet a preponderance of an evidence standard whereas police must prove beyond a reasonable doubt. If anything, the University's standard should be higher since they have no power to force production of evidence. Speaking of which....

2) The University can't force people to testify, can't force production of CC TV, e-mails, phone records, etc. Police can do that. Generally, having evidence helps when you're trying to figure out if someone did something wrong.

3) The police have people who are specifically trained to handle these sorts of investigations. The University may have people who investigate (sometimes), but they're not gonna be as good as the police and it's a little hard to investigate when you can't force people to turn over evidence.

The university has a much freer reign to hand out university-related punishments with a stricter set of rules than federal law. This is the case for pretty much EVERY institution of learning in the country, and perhaps on the planet.

You went to high school, right? You can get expelled in all sorts of ways without breaking the law. Similar principles apply here.

Sure, but getting caught smoking behind the high school by a teacher is a bit different than rape allegations, especially when charges were never brought on the rape allegations.

Schools shouldn't be allowed to have such discretion when a mistaken decision as to someone's guilt could ruin that person's life. Good luck to Gibbons with finding a decent job, like, ever. He's basically a sex offender now without the conviction/jail time.

He was expelled for sexual misconduct, not rape, and those records may very well be sealed. He's not on any official lists. The arrest is probably going on his record unless it's expunged, but these distinctions are very, very important.

The difference between "sexual misconduct" and "rape" is merely semantic for practical purposes, because the only "official list" that matters these days is Google. People without any access to the information necessary to make an informed decision (including, but not limited to the Student Gov't) have decided he's guilty, so he is because Google says he is.

You'll have a hard time finding hiring managers who either A) care or B) willingly turn down the best candidate for the job because some HR nitwit has a sensitive bladder. Don't act as if the hiring process is run by prudes who drop their shipments at the first sign of an Imperial cruiser. It's not a death sentence to have your name pop up on Google with some less-than-flattering news articles; that's just paranoia on your part.

tl;dr: Plenty of people will hire folks who aren't squeaky-clean nobodies...including expellees.

In a competitive job market something like this will get you dropped in a heartbeat. Employers have more than enough applicants, so only the cleanest get consideration. There's no incentive to go to the trouble and risk of considering someone with a red flag.

Where exactly are you going with any of your arguments? Nothing you have said has been remotely related to reality. Please answer these questions.

If you and another girl were both drunk, had what you believed to be consensual sex, and then to your surprise she accuses you of rape the next day, would you want your fate as a U of M student to be determined by a hearing where the only evidence is your word against hers, essentially? I'm not saying these are the exact facts of the Gibbons case, but seriously, think of what a terrible way to determine something so important. You seem to be downplaying being expelled from a major University like it's a traffic ticket.

What world do you live in where a google search of a guy's name bringing up hundreds of articles claiming he may have raped somebody wouldn't harm his prospects of getting a job? Seriously, is it worth arguing this?

If I were having sex with someone who was so distraught that in the immediate aftermath she would be crying to her friends and heading to the hospital for a rape kit, I think I'd notice in time to make sure there was no such aftermath. I don't think there's any degree of drunkenness where it would be possible; there's no gap in the intoxication scale between at least that level of empathy for a partner and unconsciouness, or at least impairment to the point that sex would be impossible.

If it did happen, which I'm having trouble imagining but I'll try, I'd be mortified when I found out. Mortfied at my own behavior and callousness--how could I have gotten it THAT wrong? The only thing I'd be doing is trying to reconcile somehow, unless my lawyer told me to shut up in which case I would. My friends would not be calling her cell phone and issuing indirect threats to her; if they did they would cease to be my friends and I'd make sure I was distanced from it.

I'd venture to say that over the last four years in a university the size of Michigan there have been quite a number of sexual encounters that one or both partners regretted afterwards, and that many of those involved at least one intoxicated person, which would make it a technical violation of the student code since an intoxicated person can't give consent. This is the only one of those cases where the University has seen fit to expel. To me that's a sign that they aren't being overly broad in their interpretation of their misconduct code, and that the potentially-mitigating factors--like, say, repentence, or at least a clear understanding of the meaning of consent in this context--that could have turned up in the evidence and the interviews were very much not in Gibbons's favor.

The school does not want its students subjected to non-consensual sex, it is not OK to pick up drunk girls at parties, if you think it is they reserve the right to separate you from the student body and they have now decided to do so precisely once. Anyone seriously worried that they might be the second probably needs to change their behavior.

if they kicked out everyone who had sex with a drunk girl at a party. It was an easy way to kick Gibbons out. Hopefully it wasn't to avoid this type of Title IX investigation. What I'm sure of is that Gibbons attorney would tell him not to talk to protect him in case of any criminal or civil cases.

It's sad how many are using this and police reports to say he is guilty. The police don't always get it right in their reports. That's why there are trials. Unfortunately even if there is a trial and he is found not guilty, the damage is done.

If he did not have consent, he's getting what he deserved. There are only two people who know if he is getting what he deserved or if he's getting run over.

Check out the definitions of sexual misconduct, consent, and incapacitatedhere. It includes assault and harassment. It also defines consent to include in effect you don't have it if you know she is drunk.

Actually, spend some time reading the entire site: someone show me the link where the accused civil rights are addressed. Of particular interest is the page on Findings and Outcome Notfification:

"Before the report is finalized, the participating Complainant and Respondent will be given the opportunity to review their own statement and, to the extent appropriate to honor due process and privacy considerations, the participating Complainant and Respondent may also be provided with a summary of other information collected during the investigation. A Complainant or Respondent must submit any comments about their own statement, or on any investigation summary that might be provided, to the Investigator within five (5) calendar days after that statement or summary was sent to them for review."

So you you may get a summary of what was said against you, and you get five days to comment.

rape and sexual misconduct are not the same thing "for practical purposes". All rape is sexual misconduct; not all sexual misconduct is rape. Rape is essentially the most serious degree of sexual misconduct. Conflating the two is dangerous and is part of the problem with this case. Some--not necessarily you--are projecting rape as what must have occurred (or should be required).

Universities also have a responsibility to make sure their student body is safe. If they have reason to believe Brendan Gibbons (or any other student) has exhibited behavior that could make him a danger to other students, they have every right to expel him.

If this is Brendan Smith, EECS major living in Cambridge House, you wouldn't bat an eye about the way the University handled this.

How could the university be worried about the safety of students before it even investigated the incident? Students (including Gibbons) don't get expelled as soon as they are accused of something. They get expelled after an investigation, hearing, and (if the respondent wants it) an appeal.

Ditto for the AAPD; they cannot jail someone before due process is carried out. Even you must know this.

The university decides who it wants to allow in as a student and as long as it is not discriminating they are allowed to set standards. Likewise, they have the right to decide, based on a set criteria, to expell anyone they want. I think they are making it very easy for someone with a vendetta to get someone expelled, but that's the criteria they are using.

The problem comes because of the publicity around this case. Too many assume he is guilty when only two people know what happened and they may have different interpretations. If he did what he claimed and knowingly did it, he deserves everything he is getting. We don't know that's the case, however what's happening is he's being labeled a rapist because he was expelled. It's not special treatment because he is an athlete. He's getting negative attention and his life is being destroyed without having a chance to prove his innocence.

As BiSB pointed out, we only knew ANY of the details because they were leaked. The university is not responsible for media whoring and defamation (it's possible Gibbons might have a future lawsuit) unless their own personnel leaked withheld information...in which case the offender should probably lose their job.

The university CAN'T care about public opinion in these cases, because then celebrity determines outcome. Would you rather they do nothing?

My only concern is that the university may feel more pressure to show they are doing something and judge the accused unfairly, however my point is that it's the university's right to do as it wishes.

The unfairness of this, if he is in fact innocent, is that people with agendas are taking what would normally be a fairly quiet matter and plastering it all over thereby making him guilty without a trial. That's not the university's fault. It has more to do with journalists out to make a name for themselves.

The University's interest is in maintaining an environment in which students aren't subject to nonconsensual sex. They have an expectation that their students will have a firm understanding of the meaning of "consent", they make rather a lot of information available on the subject, if anyone's confused on the matter. They're well within their rights to expel someone who had sex with someone he thought was consenting, if on investigation they determine that he should have understood that she wasn't. Ignorance isn't, and shouldn't be, a defense.

be lower. The privilege of being in school--let alone repping the school as a member of the football team--should not simply be a matter of being able to declare that you are not a criminal, especially in an incident in which it is established that you took part, and in which serious physical and/or mental harm was inflicted.

This--for me--is the part of the issue that wants debating. (Line up here, there, wherever, but let's argue this.) And I don't want the coach who's making big bucks saying he doesn't care what the public thinks about the issue and only cares what "the guys" in Schembechler Hall feel. That--to me--is circling the wagons in a powerfully homosocial manner that speaks, obliquely but all too obviously, to the problem at hand. I want a coach who looks into the matter, sees something very shitty went down, and terminates the player from the squad.

Now if you tell me that RichRod or Hoke did look into it and found the evidence dubious, cool. But no one has told us that. Enough particulars, including the police report, suggest otherwise to cast doubt that that's the case. Either way, as almost everyone has noted, the university did not handle the matter well, and has hidden behind the fig leaf of the law as your suggested standard also would.

PLENTY of other institutions have their own lower burden of proof, starting with most businesses. We should be better than WE'RE NOT CRIMINALS. It hurts the image of the whole team and the whole school.

Duke lacrosse should be sufficient evidence for why a lower standard is not a good thing. Those players put themselves in a very bad situation, but committed no crime. Now, most of them have had to move, change their names, and still can't find employment because the faculty and students were tripping over themselves to expel the players instead of, you know, letting competent authorities handle it.

The three indicted players -- Evans, Finnerty and Seligman -- sued Duke and the case was settled in a fashion that leads me to believe that they each got millions. The entire Duke team from '06-'07 sued, and that case also got settled. I think Duke's coach also sued, although they may have settled with him pre-suit.

Reade Seligmann graduated from Emory Law School and is now a clerk for a U.S. District Court Judge.

David Evans went to Wharton, and is now at a venture capital firm.

Collin Finnerty I am not sure about. He was probably the best player of the three, and was the youngest at the time.

a certain segment of the public. Although it was a far, FAR different circumstance, it is repeatedly invoked as proxy for all of the torment young males accused may ever suffer--a lot of guys clearly identify strongly.

But as several people here have pointed out, about 5% of actual sexual crimes get prosecuted; a lot of those crimes, in fact, are carried out against men. THE DUKE CASE IS AN OUTLIER.

You don't agree--that's fine. But believe me, law firms, police departments, many other sports institutions and thousands of other institutions in our daily life do quietly tell people to get the fuck out. (No one had to know the details, let alone all of them.) The institutions remove them for precisely the reason that Michigan should--they besmirch the reputation of the law firm, police department, school, etc. And in the main the miscreants move on because they are guilty.

Personally--again, speaking for myself--in an environment in which 95% of culprits walk free I'd rather err on the side of screwing up/falsely accusing. And yes, it's possible that someone like Gibbons is falsely accused. But he still has recourse. And after four years there's enough innuendo and ugly out there already to pretty much kill any argument that he refrains from availing of it to protect his rep.

Are you suggesting there's something wrong with that? (And doing so in the safety of anonymity, I might add.) What exactly has she done, that she should be required to forfeit her anonymity and/or to not go on with her life?

There is no evidence whatsoever that anything she said to the police was untrue. There aren't even any factual inconsistencies in the police report between her account and Gibbons's, just very very different interpretations of what was happening.

And, yet, she no longer maintains that Gibbons is guilty of a crime. Yet she isn't required to state that openly, and so all we are left with is an accusation that she will no longer support but neiter will she deny.

Again, whether justice should be pursude isn't for her to decide. Someone who makes such a charge should be required to either publicly back it or publicly repudiate it. Simply deciding that you can't be bothered to pursue such an accusation isn't morally tolerable.

she could have wanted to get out of school and not be hounded by people sympathetic to Gibbons (as has been alleged), by the rep that would follow her to class every day. She could have decided she was traumatized enough. I live in Tallahassee and can tell you--irrespective of what actually went down with Jameis Winston--the young woman in that case has seen a very ugly side of humanity these last few years. She may also have been offered various. . . inducements, including by the university. The fact that a Tallahassee cop told the young woman that she would face a lot of hell if she chose to demand a trial has been painted as scandalous, but it's possible to read the advice in a different, sympathetic light (whatever the propriety).

I'm with Section One on one thing--I think the facts need to come out. Unlike him, I am totally good with--indeed, applaud--if what happened is that the justice department/Title IX enforcement instituted a lower threshold.

Again, what I'm arguing for is a football team standard. And an explanation. Because if a guy was accused of what Gibbons was accused of, stayed four years and won games for us, THEN was expelled, that looks like crap from most people's standpoint.

In the end I'm kind of surprised that so many people are defending the people who made our football team look like crap. That may include RichRod, of whom I was a strong supporter.

I couldn't disagree with you more. The privilege of being in school? I realize what Michigan is conducting is not a criminal proceeding, but it almost seems that way, and one where you leave your constitutional rights at the door.

The Gibbons decision has an absolutely huge impact on the accused"s life. Who would hire a kid who has been publicly convicted of sexual assault? Yet. all oif the protections that our legal system has built in - rules of evidence, burden of proof, subpoena power - is absent.

The only information that I have seen with Gibbons is an accusation and one party's recitation of the facts. Now, she may be 100 percent correct, and Gibbons should be castrated, but what if she isn't.? She was drinking. So was he. On cross examination things may come out that may disprove or prove the veracity of the claim. Witnesses are questions with the threat that if they lie and are found out, they go to jail for perjury. There are a host of protections given to the accused. But, WE NEVER GET THERE!

Michigan's handling of this situation is a mess, to say the least. But Michigan doesn't get egg on its face alone. The damned DOE deserves some of the blame too by what I see as an absurd rule change lessening the burden of proof..

A second, related disclosure exception is set forth in § 99.31(a)(14). Under this exception, an institution of postsecondary education may disclose the final results of a disciplinary proceeding, if it determines that:

the student is an alleged perpetrator of a crime of violence or non-forcible sex offense; and

with respect to the allegation made against him or her, the student has committed a violation of the institution's rules or policies.

When an institution determines that an accused student is an alleged perpetrator and has violated the institution rules, then there are no restrictions on disclosure or redisclosure of the final results of a disciplinary proceeding. In circumstances where an institution makes a determination that the accused student committed a violation, this clearly provides for much greater disclosure than is permitted by § 99.31(a)(13). In addition, the redisclosure restrictions of § 99.33 do not apply. On the other hand, § 99.31(a)(13) assures that an alleged victim can learn what the final results of a disciplinary proceeding were, even when the institution determines that the accused student did not violate its rules. When an institution discloses the final results, it must also inform the student that FERPA does not permit any redisclosure of this information.

When you enter something like an institute of learning, you DO in fact leave your constitutional rights at the door...or at least have them restricted further. We learned this the first day of practical law in high school.

Who would hire a kid who has been publicly convicted of sexual assault?

As Section 1 has pointed out with the Duke case, the court of public opinion means jack shit to savvy hiring managers. I partly blame my parents' generation for scaring us into thinking a single blemish ruins our lives forever. I guess the one good thing to come from corporate greed is that they don't care if you're Charles Manson if you can make them money and avoid future PR disasters.

I took con law some time ago, but remember enough that I wasn't suggesting that a university student wouldn't have certain constitutional rights restricted by his/her relationship with an institituion.

My point was that for a charge as serious as sexual assault, the burden of proof should be something other than preponderance of the evidence or, to put it bluntly, roll back the recent change that DOE required to be implemented.

As far as the Duke case goes, I'm not sure the comparison is valid as the players were exonerated. With Gibbons, that may not be the case, even if he is innocent.

What concerns me is whether the threat of the government investigating may make the preponderence of the evidence standard even lower. It may be even more likely in a high profile case like this. This potential problem is made worse since the accused attorney is going to tell him not to talk to avoid providing evidence for any potential criminal proceedings. The scales are tilted dramatically towards expullsion.

I won't give you the answer from all angles because I'm not billing for this time. But in short, the "Federal government allows the University to expel a student committing a 'crime' for which he was never tried and convicted" because the Federal government just may have required the University to adopt the disciplinary hearing standard of review used here. The Campus SaVE Act, included as part of the VAWA reauthorization, requires schools to institute a hearing process. Further, a proposed regulation that interprets the SaVE Act might just force schools to utilize that standard of review in the hearing process. Schools that don't may be subject to Clery Act penalties.

I have no interest in a moral/political/normative debate but that's the descriptive legal landscape. Stray from it at your peril. If you want change, write your congressman or something.

in which FERPA is irrelevant, and there are plenty of questions the school and Athletic Department CAN answer. But there are some core things that are protected, and investigation reports are absolutely included.